However, in this case, it is proposed that the sellers` advisors also request the inclusion of a clause in the stock purchase contracts confirming that the purchaser entered into the contract solely on the basis of the guarantees mentioned in it and that it was not based on any other insurance from the seller. Sellers would also be advised to follow all insurance towards the buyer, especially since the buyer might not accept a seller`s request to include such an exclusion, either outside the outside or shortly before signing. While it can rightly be said that the case focuses on particular facts and that the buyer`s quick reactions were the key to the success of his right to resign, the principles set out in this case have a broader scope with respect to mergers and acquisitions. While, in certain circumstances, misrepresentation may give rise to a right to resign, the establishment of misleading pre-contract statements may also support a right to financial damage for deception. For most sellers, therefore, it is clear that the explanations given by the buyer are clear; As a general rule, important negotiations precede the final guarantee and compensation agreement in a share purchase agreement, and it is unacceptable for most sellers that any pre-contract statement can effectively be treated as an additional guarantee. It is a well-established principle of English law that when a person has been brought to enter into a contract because of the fraudulent misrepresentation of the other party, the first party may revoke that contract, claim damages or claim both. Similarly, under English law, fraud requires the intent to deceive. Resignation is the retroactive circumvention of a contract that results in the contract never being concluded. As a result, the shares would be returned to the seller, who is required to repay the consideration paid for those shares.
Some appeals may be quashed for the right of withdrawal, z.B. if the party who has argued a misrepresentation confirms/negotiates the contract in a manner inconsistent with its intention of withdrawal (for example, it attempts. B to sell the assets it has acquired as a result of the fraudulent misrepresentation), or it is not possible to return the parties to their original position (for example. B the entity has entered into new contracts or undergone restructuring). A delay in terminating a contract after the discovery of misrepresentation can also ruin the right of withdrawal. Unfortunately, these questions were not answered because the parties filed an appeal in von Hampson`s appeal. Had the parties not settled their accounts, GG Ltd would have been entitled to its purchase price of DEPA 2.5 million, plus a grant from Hampson for its legal costs. Instead, the parties agreed that GG Ltd would retain HPA instead of withdrawing the BSG. Hampson agreed to pay $1.5 million in damages to GG Ltd and contribute to its costs. When negotiating the terms of a share purchase agreement, a seller`s advisors should endeavour to minimize as much as possible the protection he affords to the buyer and, in particular, to exclude liability for misrepreser pasted allegations. While a buyer`s claim is eligible for financial damages for breach of a contractual guarantee or under a compensation given in the share purchase agreement, a right to misrepresentation may give the customer the right to request termination of the contract, as happened in this case. For this reason, share purchase contracts often contain a clause that prevents the buyer from filing a complaint against the seller for misrepresentation, but such a clause is inoperative if the false presentation is fraudulent.
The sales and purchase documents did not contain guarantees regarding forecasts or customers, so the erroneous indication of the forecasts and corresponding documents did not constitute a breach of the guarantee.